Commonwealth v. Christian D. Barreto.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-468

COMMONWEALTH

vs.

CHRISTIAN D. BARRETO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury found the defendant guilty of one

count of indecent assault and battery on a child under the age

of fourteen.1 Following his direct appeal, a panel of this court

affirmed the defendant's conviction. See Commonwealth v.

Barreto, 95 Mass. App. Ct. 1112 (2019). Thereafter, the

defendant filed a motion for a new trial, claiming, inter alia,

that his trial counsel was constitutionally ineffective. The

motion judge, who was also the trial judge, denied the motion.

The defendant appealed. We affirm.

1The defendant was acquitted on a separate count of the
same charge.
Discussion. We review a judge's ruling on a motion for a

new trial "only to determine whether there has been a

significant error of law or other abuse of discretion."

Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting

Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). When the

basis for the motion for a new trial is a claim of ineffective

assistance of counsel, "the defendant must show that the

behavior of counsel fell measurably below that of an ordinary,

fallible lawyer and that such failing 'likely deprived the

defendant of an otherwise available, substantial ground of

defence.'" Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255

(2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96

(1974).

When the basis of a claim for ineffective assistance is a

strategic choice by counsel, the defendant must demonstrate that

the "strategic choice was 'manifestly unreasonable.'"

Commonwealth v. Hudson, 446 Mass. 709, 716 (2006). Moreover,

"[i]n cases where tactical or strategic decisions of the

defendant's counsel are at issue, we conduct our review with

some deference to avoid characterizing as unreasonable a defense

that was merely unsuccessful." Commonwealth v. Kolenovic, 471

Mass. 664, 673 (2015), quoting Commonwealth v. Valentin, 470

Mass. 186, 190 (2014).

2
"On review, '[a] judge's findings of fact after an

evidentiary hearing on a motion for a new trial will be accepted

if supported by the record.'" Kolenovic, 471 Mass. at 672,

quoting Commonwealth v. Walker, 443 Mass. 213, 224 (2005). We

grant "special deference to the rulings of a motion judge who

was also the trial judge." Commonwealth v. Alcide, 472 Mass.

150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469,

488 (2014).

On appeal, the defendant argues that trial counsel was

constitutionally ineffective for three reasons, and we address

each in turn. First, he contends that counsel failed to object

to impermissible portions of the first complaint testimony

offered at trial. See Commonwealth v. King, 445 Mass. 217, 242-

243 (2005), cert. denied, 546 U.S. 1216 (2006) (describing first

complaint doctrine). During the trial, the victim's mother

testified as the first complaint witness and described the

circumstances under which the victim informed her that she had

been assaulted by the defendant. The witness testified that, in

2011, her daughter told her that she no longer wanted to go to

the defendant's home. When she asked why, the victim told her

that the defendant reached under her shirt while he was tickling

her. When asked by the prosecutor what she did in response to

receiving that information, the witness further testified that

she felt upset by this information, trusted the victim, stopped

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sending the victim to the defendant's house, and resolved to

confront the defendant about what had happened.

We are unpersuaded that trial counsel's decision not to

object to this testimony was manifestly unreasonable. As the

defendant concedes, a central factor at trial was the

credibility of the witnesses, as there was no physical evidence

of the crime. After the witness testified about trusting her

daughter and her strong feelings with respect to the abuse, the

defendant's trial counsel proceeded to attempt to impeach the

witness with questioning related to a trip to Brazil; the

witness did not attend this trip, but did permit the victim to

travel accompanied by the defendant and his family. This line

of cross-examination emphasized the disparity between the

witness's strong feelings of belief about the alleged assault

and her willingness to allow the victim to travel with the

defendant unescorted thereafter. Such an effort at impeachment

represented a sound trial strategy, and we discern no error on

the part of the judge in denying the motion for a new trial on

this basis.2 See Commonwealth v. McCoy, 456 Mass. 838, 853

2 For the same reasons, trial counsel's decision not to
object when the prosecutor emphasized the witness's emotional
reaction to the complaint during her closing argument was not
manifestly unreasonable. See Kolenovic, 471 Mass. at 676 ("we
see no basis to fault counsel for elevating his concern for a
viable legal defense over a possible alternative approach likely
fraught with difficulty").

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(2010) ("because the testimony of the witnesses inured to the

defendant's benefit, it is reasonable to infer that defense

counsel's failure to object was a tactical decision"). See also

Hudson, 446 Mass. at 716.

Second, the defendant claims that trial counsel was

ineffective for showing the jury a twenty-two minute recording

of the victim's Sexual Assault Intervention Network (SAIN)

interview. During the evidentiary hearing on the defendant's

motion for a new trial, counsel testified and informed the judge

that he played the video in order to highlight inconsistencies

between the victim's presentation in the recording and her

testimony and demeanor at trial. In his closing argument, trial

counsel highlighted this contrast and suggested that the

contrast should cause the jury to discredit the victim's

allegations. Accordingly, we are unpersuaded that presenting

the SAIN interview to the jury constituted ineffective

assistance of counsel for much the same reasons as we have

previously discussed. See McCoy, 456 Mass. at 853.

Strategically making use of the SAIN interview in an effort to

impeach the Commonwealth's primary witness was a reasonable

trial strategy. As such, there was no error in the judge's

rejection of the argument that such an approach was manifestly

unreasonable. See Hudson, 446 Mass. at 716. A trial strategy

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cannot be deemed manifestly unreasonable merely because it is

unsuccessful. See Kolenovic, 471 Mass. at 673.

Finally, the defendant claims that trial counsel was

unreasonable for failing to object to testimony elicited by the

Commonwealth that, subsequent to the victim's first disclosure

made to her mother, she disclosed the abuse in greater detail to

her mother and the wife of the defendant several years later.

The defendant argues that trial counsel should have objected to

the admission of this testimony because it fell outside the

scope of the first complaint rule. As we have discussed supra,

however, where trial counsel sought to highlight contradictions

between the various claims that the victim made to her mother at

various points in time,3 we cannot conclude that declining to

object to testimony that helps accentuate that contrast was

manifestly unreasonable. See McCoy, 456 Mass. at 853.

Having concluded that the defendant's trial counsel was not

ineffective for any of the reasons asserted, we need not reach

3 During closing arguments, trial counsel suggested that
"there may or may not have been horse playing around and that
then morphed into five years later an accusation of
inappropriate touching."

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the merits of his claims with respect to whether such alleged

errors caused him prejudice.4,5

Order denying motion for new
trial affirmed.

By the Court (Meade, Blake &
Desmond, JJ.6),

Clerk

Entered: August 13, 2024.

4 The defendant further raises an argument that the trial
judge erred by failing to, sua sponte, give a limiting
instruction to the jury prior to testimony by the victim
describing the first complaint. The facts supporting this
argument were known to the defendant at the time of his direct
appeal, and it is accordingly waived. See Fogarty v.
Commonwealth, 406 Mass. 103, 107 (1989).

5 The defendant also alludes to ineffective assistance of
counsel with respect to appellate counsel during his direct
appeal because she failed to raise the issue of ineffective
assistance at that time. Appellate counsel testified at the
evidentiary hearing for the defendant's motion for a new trial
and explained that the defendant was deeply distraught at being
incarcerated. As a result, rather than suffer any further
delay, the defendant insisted that she proceed with the appeal
expeditiously, in lieu of taking the time to file a motion for a
new trial grounded in a claim of ineffective assistance of
counsel. The judge credited her testimony, and we see no reason
to overturn his decision on these grounds.

6 The panelists are listed in order of seniority.

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